Sunday, February 06, 2011

Skyriver Replies

Following up on the these early stages of what will probably be an interminable legal case (it's easy to understand why one should avoid going to court whenever possible), The SkyRiver has replied to OCLC's Motion to Dismiss.[1] [2] This is the first document I have seen that to me clearly lays out Skyriver's basic contentions. Note that the major part of this document is the usual lawyerly recitation of cases supporting one statement or the other, and I have no idea what the legal arguments mean or whether they are convincing or not. But here are SkyRiver's primary facts as this document lays them out:

1. OCLC has monopolies in the US academic library market

"OCLC is monopolizing three product or service markets—bibliographic data of libraries’ holdings; cataloging service; and interlibrary lending service (ILL). OCLC is attempting to monopolize a fourth service market—integrated library systems (ILS)." p. 1

2. OCLC has used those monopoly positions to prevent competition

"Since at least 1987, OCLC has demanded that its member libraries agree to terms of membership that prohibit sharing the metadata of their own library holdings contributed to OCLC’s bibliographic database known as WorldCat with any for-profit firms for commercial use and require member libraries to use OCLC’s services. OCLC has imposed these membership terms to prevent the development of competing bibliographic databases, cataloging services or ILL services by erecting barriers to entry in these three markets. OCLC is also using its monopoly power in these three markets in its attempt to monopolize the ILS market." p.1

3. OCLC has targeted SkyRiver's business by using punitive pricing for libraries that use SkyRiver's cataloging services

"OCLC’s conduct has injured SkyRiver by deterring libraries from using its service, and has injured libraries that are using SkyRiver to reduce costs by preventing those libraries from uploading their new records into WorldCat at the price charged to everyone except SkyRiver users." p. 2

Beyond that the arguments become more complex. In particular there is the issue of the 20+ years that OCLC has been building up WorldCat under a policy that has prohibited (acc. to the response, p.4) libraries from sharing their cataloging data with for-profit entities. With no other non-profit entity providing cataloging services to US academic libraries, the records are essentially locked-up in WorldCat and no one else can enter the market.

This brings me to a point that I got wrong in a previous post, which is that Skyriver is asking for access to the WorldCat database. The argument there, if I read it correctly, is that WorldCat is the only major source of academic library holdings that can be used for an effective ILL service. WorldCat is the result of monopoly practices. To allow for competition, WorldCat (e.g. bibliographic data and holdings) should be made available for a reasonable price to competing ILL providers. While this seems jarring at first, the more I think about it the more sense it makes.

What the response does not say explicitly, and perhaps it would be irrelevant in a legal case, is that one could look on WorldCat as a shared community resource, not the property of OCLC. In fact, OCLC uses this kind of argument in its record use policy, but somehow leads to the conclusion that WorldCat should not be used to foster non-OCLC library services. It seems easy to make the opposite argument, which would be that WorldCat could be the basis for a wide range of services that would benefit libraries, even if they do not come from OCLC. Imagine if OCLC were to set non-discriminatory pricing for use of WorldCat and anyone could make use of the WorldCat data. There could be a "share-alike" clause that would require those users to return pertinent information to the bibliographic collective. WorldCat would grow, and the range of products and services available to libraries would grow. This seems like a GOOD THING.

I realize it may not be easy to do the analysis that would lead to pricing that both fosters sharing and makes it possible even for small businesses* to arise in the library market. It should be possible, given today's technology, to do this efficiently but we know very little about the cost structure of WorldCat. It is clear that there are many activities relating to the care and management of that database, all intertwined with OCLC services and valuable research projects, as well as linked deeply into tens of thousands of library systems around the world. Should the court require OCLC to open WorldCat for use, we need to see a transition that is non-destructive to the library ecology.

* The reason I emphasize small businesses is that I believe that smaller, more nimble vendors could exist to serve the needs of specialized and smaller libraries which are not OCLC members at this time. I see the potential to widen the community of sharing, even to include more non-library institutions and businesses. Another GOOD THING, IMO.

Anyone think there is a chance that OCLC will reconsider their approach? Perhaps a petition signed by their members would give them pause, if it were signed by enough members. They are firm in their defense of their public purposes and to many of us it appears that their monopoly stance is in direct conflict with those purposes.

Do u really think cost will go down - in the long run - with III/SkyRiver? Do you really believe that III/Skyriver will free their data? Has anyone asked them to share their database? Anyone who has a III ils knows differently!

Why, when you reviewed OCLC's motion to dismiss, did you present it as "Sarcasm and Nastiness", "Separate Realities" and "obfuscation". Yet your review of SkyRiver's response contained none of the equally nastiness, restating facts and obfuscation? Are you trying to present a fair and unbiased approach or are you very clearly pointing out your favoritism. Would just like to set the record straight. Thanks.

Jen and Wendy -- If you want to know about costs, you should ask SkyRiver or read the statements of their customers. Marshall Breeding's excellent page on the lawsuit includes some letters that discuss costs:http://www.librarytechnology.org/web/breeding/skyriver-vs-oclc/I'm not terribly interested in the cost angle since I'm not likely to be a customer of either OCLC nor SkyRiver.

In terms of "sharing" the database I should remind you that many libraries share their databases -- either through Z39.50 or APIs, or by making their entire catalog available in bulk. There is an attempt to centralize information about bulk data at CKAN:http://ckan.net/group/bibliographicThat list includes one library vendor, Talis. However, if you are talking about SkyRiver and OCLC, I understand the idea to be use for payment (I believe the term in the legal documents is "reasonable" payment). As long as the technology permits it, it's hard to know why someone would not want paying users of their database.

Wendy, if I had seen sarcasm or nastiness in the reply, I would have mentioned it. It may be a bias on my part, but I didn't find anything of that nature in the SkyRiver reply. I assume you haven't read it -- I recommend that you do. And if you think there is inappropriate language, you should blog that yourself. You CAN set the record straight, but you will need to do some work, have something substantial to say, AND come out of the closet of anonymous posting.

Note: I continue to get nasty comments from someone using female names but sounding very much like a known male with very poor judgment. I'm just sending those to a spam file since there's no reason to subject others to his bile. I would, however, be interested in the experience of others who have posted about OCLC -- do you get hate mail/comments related to your posts? I noticed a few rather sharp comments to Karen Schneider's blog post, but numerous others (all by men) seem to have been spared, although they may just be quicker than I am to can the spam. I don't want to block anonymous posting since I know that many people can't post openly on this subject.

Meanwhile, I welcome thoughtful comments, even those that disagree with my posts.

Many seem to assume that, as a non-profit, OCLC cannot be a monopolist, yet if they control a large enough portion of the market and their policies and practices discourage or prevent their clients from utilizing competing services, this seems adequate to support the label of monopolist. Further, OCLC's services have never been cheap.

I don't know much about Skyriver. They may be excellent or they may be horrible. If their services are overpriced and under deliver OCLC should be able to compete without restrictive membership and service clauses.

Anon - Yes, one of the few things I know about anti-trust is that it isn't just about being a monopoly, but about using that monopoly position to prevent other businesses from arising in the same market. So what it comes down to is that you can be a monopoly, but you still have to play fair. That is the question here, as you point out.

One particularly interesting aspect is that the SkyRiver suit seems to be saying that the OCLC record use policy, which has existed for 20 years, has always been about preventing competition. I hadn't thought of it that way, but it is a logical conclusion. So even before OCLC had a monopoly position, they were trying to limit the market, and this has made their current monopoly position that much stronger. I don't know how the law looks at "exclusive" deals, so that may or may not be of interest to the court.

I always thought the OCLC user agreement was to make sure that those using the data were also contributing data. Without the contributions of the member libraries there would be no WorldCat. If they allow others to use WorldCat holding data then they should be reqeuired to contrbute WorldCat holding data. OCLC is a monopoly but it is also a cooperative. Without requiring contributions, the cooperative will go down the tubes. I know that ILL is a little different in that area but those that borrow from others should also have to lend. I have not read the legal arguments but I wonder if SkyRiver does not want to do the cooperative piece that goes along with maintaining the WorldCat database.

In terms of contributing to the resource sharing/holdings information in OCLC, I think those of us who would like to use SkyRiver or another cataloging source are eager to do so. The problem is that, if we are not cataloging members of OCLC the charge to contribute holdings goes up from a few cents to much, much more.

SkyRiver or other systems can let us get our cataloging for a much lower cost, and it is OCLC's huge increase in the holdings contribution charge that is in our way. In the end, this is going to drive users away from contributing holdings and reduce the value to both OCLC and libraries of the worldcat holdings files.

I think you are right -- the point is for everyone to contribute their data (either to WorldCat or to something else that could also interact with WorldCat) so that we can share both data and resources. SkyRiver makes no restrictions on what its users can do, so they are free to contribute their holdings to OCLC if they wish. If you were in libraries during the time that RLG was still a separate service, you know that many RLG institutions also added their holdings to OCLC through batch loads. In fact, a majority of the records loaded into OCLC in recent times are from batch loads.

The current issue came about because of "differential" pricing for libraries that had been doing their cataloging on OCLC but switched to the SkyRiver service (because it would reduce the libraries' cataloging costs). When those libraries tried to batch load their records into OCLC so they could continue to use (and pay for) ILL services, the price for their batch loads was given at 1200% the price that others had been paying. So this is kind of the opposite of what you were suggesting: SkyRiver and the libraries were wanting to contribute their holdings to OCLC, but OCLC priced that at a point that the libraries could not afford to. I recommend the letter from the Director of Libraries at MSU explaining their situation:

http://www.librarytechnology.org/ltg-displaytext.pl?RC=14928

I think it comes down to coming up with pricing that encourages libraries to contribute their holdings to OCLC, for the benefit of all, while still supporting WorldCat. Unfortunately, none of us has access to OCLC's internal accounting, so it's hard to know how that balance could be achieved. OCLC is claiming that competing products such as SkyRiver's cataloging service will be the death of OCLC. I am hoping that instead we can find reasonable pricing that encourages ALL libraries to contribute, both the OCLC and to any other library services that meet their needs.

If OCLC wants to live, they need to adapt to the new reality of sharing -- that data can be concatenated without having to all live in the same place.

There are several resource sharing systems around the country that gather each others' holdings through virtual union catalogs and manage ok.

While I think the OCLC actual concatenation probably works better right now, there is a limit to how much libraries will pay for it when there are good enough alternatives developing. Meanwhile, OCLC is rapidly losing the respect of its customers -- sorry, I meant "members".

Brenton, 1) I didn't read anything lawyerly in Linda's comments. 2) Most union catalogs that I know of gather data from the catalogs of the member libraries. I know the U of California did that; I'm pretty sure that's how the Florida union catalog works; I'd guess that's the same for most consortial catalogs. I think that most library systems today can export records, no?

So I guess I don't know what your question actually is. Maybe you can re-state it?

Are you asking where the virtual union catalogs get their holdings? The ones I know about query the group online catalogs and compile the hits in real time.

Of course, most of those catalogs built their records from OCLC initially, but some of them have records that came from other sources and so include holdings that may not have been reported to OCLC. In particular, some libraries did not do their retrocon via OCLC and did not load the holdings later because of the expense.